So you want to obtain a trademark, but are unsure of what is involved. More importantly, you are unsure as to what it will cost.
Before getting too far along in the trademark process, the first thing I would suggest doing is making sure that a trademark is really the right type of intellectual property for your situation.
After determining that a trademark is the best way to protect your intellectual property, it is important (very important) to deliver my knee-jerk legal disclaimer that each trademark is different, each application is different, and therefore, the cost of each trademark may be a little different.
I try to do most of my trademark application work on a flat fee arrangement, so going into the filing and application you know exactly what it will cost.
Generally speaking, more applications involving complex marks with multiple classes that haven’t actually been used in commerce yet are going to cost more than a simple word mark in one class. Part of the reason for this is that the filing fees at the US Patent and Trademark Office (USPTO) are higher. Another reason is that more attorney time is involved.
The example I’ll be outlining here is for a single class trademark that has already been in use. This is the most basic kind of application and is also the most inexpensive kind.
The Search
First of all, it is always a really good idea to have some sort of professional trademark search done before filing for a trademark. There is nothing worse than investing time and money into a trademark application only to find out that someone else has been using the mark longer than you, or has tried to register the same mark and failed. Perhaps the only thing worse than this is getting sued for trademark infringement by another party. Both unpleasant scenarios are more likely to occur without a thorough trademark search.
For these reasons I recommend having a search done professionally through a company like ThomsonReuters (note – I have no ties or affiliations with ThomsonReuters).
A good professional search will include a federal search, a search of every state database, and it will also include a common law search. A common law search includes searching domain names, the web, various directories, newspapers, etc.
The search results are delivered in a substantial and detailed report. For single class word marks the cost of the search starts out at $700 and moves up from there (as of early 2013 – the rates are always out of my control and subject to change). The search is not only for direct conflicts, but also for “confusingly similar” marks that are already in use. It will take me at least 1-2 hours to review the report and my hourly rate at the time of writing this article is $200.
I know some will balk at the idea of spending $1,000+ on a trademark search. Honestly, it’s money well spent if you are going through the trouble of investing in a trademark. Also, it is much cheaper than a trademark infringement lawsuit. That said, I also understand that this isn’t always an option for everyone.
As an alternative to a professional search I can do a quick and dirty search. This is where I take an hour or 2 and quickly scan the federal records, Florida records, domain name registry, and the internet. By no means is this an exhaustive or comprehensive search, but it can help identify any obvious “low hanging fruit.”
In the event that you want to do your own trademark search the USPTO does have TESS, a publicly available federal trademark and pending trademark database. Please keep in mind that searching for your trademark on here is not the same as doing a full blown federal trademark search.
Filing and Prosecution
At the time of writing this article (early 2013) the USPTO has a $325 per class filing fee for a use-in-commerce application. For an Intent-to-Use (ITU) application there are additional fees and documentation required.
Although much of the application is fairly straightforward, there are issues to consider when filing (such as which classes to select, whether to use a standard character or special form drawing, and whether to file a use-in-commerce or ITU application) to avoid common pitfalls. If there is a problem with the application the USPTO will communicate that to you through something known as an Office Action.
Once any Office Actions have been answered the mark will be approved for publication in the Official Gazette (OG), a weekly online publication put on by the USPTO. After publication in the OG there is a 30-day period in which the public may object to the registration of the mark by filing an opposition. Oppositions proceed much like a court proceeding, but they are held before the Trademark Trial and Appeal Board. If an opposition were to occur it would significantly raise the cost of obtaining the trademark.
If there are no objections (or you overcome any objections) and you have a use-in-commerce application the USPTO will issue you a registration certificate. If you have an intent-to-use application you are issued a Notice of Allowance and there are a few more steps to take.
I’ll take care of the filing and prosecution for a use-in-commerce application at a flat rate of $600 plus the filing fee (so $725 total). This includes everything from application to registration – assuming we have no substantive office actions (Office Actions not requiring research or legal argument) or objections. I handle everything personally including all correspondence with the USPTO.
Final Cost
So for a basic application of a single class trademark your cost will range from $1,125 to $1,900. The biggest variable I have included there is the cost of the search. People may be tempted to cut corners and avoid a thorough search, but it’s like trying to build a house on a poor foundation. Maybe you won’t have a problem, or maybe the slightest wind will come along and every brick will come tumbling down.
Attorneys vs. Document Preparation Services
As you continue to research the cost of obtaining a trademark (and trademarks in general) you may be tempted to use a document preparation service like LegalZoom. I would respectfully advise against following this strategy. This is because using a document preparation service is not the same as hiring a lawyer.
The biggest difference is that a document preparation service cannot provide legal advice. Document preparation services give you forms to fill out and then turn you over to the USPTO – that’s it. If the choice is between using a document preparation service and doing the application yourself save the $99 and file yourself.
An attorney will not only be able to guide and advise you on the law and substantive issues surrounding your specific mark, but they also handle every aspect of the process and ensure it all goes smoothly. At my office I handle all trademark applications personally.
I’ll be the first to admit that I am not the “cheapest” option. I firmly believe competing on price is a race straight to the bottom, and I will not cut my prices to the point where it begins to sacrifice service. I appreciate the fact that there is a real need for cost effective legal services, but also know that each application is important and it deserves time, attention, and respect – I have tried to balance my prices accordingly.
In most cases, I’m preaching to the choir. Prudent business owners who understand that trademarks are assets know that hiring a trademark attorney is well worth the investment.
The Cost of Obtaining a Trademark – Final Thoughts
I hope this article was helpful and provided you with practical information on the cost of a trademark application. I also hope it helped give you a better appreciation of the trademark process.
If I can be of any assistance at all to you with your trademark or intellectual property law needs please do not hesitate to get in touch. I am available by phone (941-882-4367) or email (dan@danpolicastrolaw.com) and am more than happy to sit down and discuss your intellectual property needs.
